Employee’s Service As A Union Officer Was Protected Activity But The District Was Justified In Terminating Her For Numerous Errors

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Jan 31, 2024

Ramirez was employed as a secretary at Visalia Unified School District for more than 20 years.  Between 1997 and 2012, Ramirez received positive work evaluations.  Starting in 2013, her evaluations became negative. In 2015, the District issued Ramirez multiple reprimand letters due to errors and performance issues, and then initiated termination proceedings.  The parties settled in 2016 and Ramirez agreed to transfer to a position with Visalia Charter Independent Study (VCIS).  VCIS is part of the District and operates independent study programs.

In late 2016, Ramirez was nominated to serve as a union officer.  The VCIS principal urged Ramirez not to accept the nomination and expressed concern that union activity would impact Ramirez’s work performance.  Ramirez began service as her local union chapter’s vice president in January 2017.

Ramirez’s responsibilities at VCIS included entering student absences into a computer program.  The program defaulted to full attendance, so she only needed to enter absences, not attendance.  The attendance records were reported to the state and corresponded to funding for the school.  In December 2017 or January 2018, a parent complained that a student was erroneously marked as absent.  The VCIS principal investigated the complaint and discovered additional attendance entry errors.  Ramirez had made over 100 incorrect attendance entries between September 2016 and January 2018.  The principal reported the findings to the superintendent.

On January 9, 2018, Ramirez attended a school board meeting where she criticized District policy and the superintendent.  The superintendent was at the meeting.  The superintendent directed the VCIS principal to investigate deeper into Ramirez’s errors.  On January 22, 2018, two weeks after the board meeting, the District placed Ramirez on leave pending an investigation.  The District did not immediately inform Ramirez of the reason for the investigation.  The leave notice prohibited Ramirez from entering VUSD property and contacting staff or students about the investigation.  Two months later, the superintendent allowed Ramirez to attend union meetings.

The investigation concluded that Ramirez had falsified records, created numerous errors, and her errors had created incorrect permanent student records.  The investigation concluded that her mistakes exposed VCIS to potentially $750,000 in liability for misreporting attendance to the state.

The District initiated termination charges against Ramirez based on falsifying information, incompetency, inefficiency, neglect of duty, insubordination, discourteous treatment of the public, and violation of rules, policies and procedures.  Ramirez contested the charges and received a hearing.  At the hearing, the VCIS principal testified regarding Ramirez’s recent mistakes and performance issues.  The superintendent testified regarding Ramirez’s previously settled termination charges and longer history of performance issues.  The hearing officer substantiated all charges except for falsifying records.  The District school board voted to terminate Ramirez’s employment.

The California School Employees Association (CSEA) filed an unfair practice charge with the Public Employment Relations Board (PERB).  CSEA alleged the District violated Government Code Section 3543.5, subdivision (a), by firing Ramirez in retaliation for engaging in protected union activity.  PERB then formally issued a complaint.

The District argued that simply being a union officer was not protected activity, CSEA failed to prove retaliation, and the District would have terminated Ramirez regardless for inadequate performance.  PERB found in Ramirez’s favor.  First, PERB overturned prior PERB precedent and found that serving as a union officer is protected activity.  Second, PERB held that the District retaliated against Ramirez for her union activity. PERB looked at multiple factors but particularly focused on the close timing between Ramirez’s criticism of the superintendent and the subsequent investigation.  Finally, PERB found the District failed to prove it would have terminated Ramirez for performance had she not engaged in protected union activity.  PERB ordered the District to reinstate Ramirez to her position or its equivalent.  The District appealed.

The District argued on appeal that, rather than initiating a PERB case, Ramirez should have appealed the board’s termination decision by seeking a writ under Civil Procedure Section 1094.5.  The court of appeal disagreed with the District and held that PERB has exclusive jurisdiction to adjudicate antiunion action.  Education Code Section 45113 gives school boards the power to determine whether there is sufficient cause to terminate an employee.  PERB has the exclusive right to resolve disputes under the Educational Employment Relations Act (EERA), such as arguments that an employer retaliated against an employee for union activity.

Next, the District argued that Ramirez’s status as a union officer did not constitute protected activity without some additional action.  The court of appeal affirmed PERB’s decision that holding union office was protected activity.

The court of appeal accepted PERB’s conclusion that the District terminated Ramirez in retaliation for her protected activity.  PERB based its retaliation finding on six factors.  The court of appeal found that PERB’s conclusions as to four of those factors were reasonable.  First, the timing between Ramirez’s critical comments and placement on leave was suspect.  Second, the District placed Ramirez on leave without immediately telling her what the investigation was about.  Third, the investigation was rushed.  Fourth, the District demonstrated union animosity by first discouraging Ramirez from taking union office and then prohibiting her from entering District property and communicating with union members while on leave.

However, the court of appeal disagreed with two of the factors that PERB relied upon in its retaliation analysis.  The court of appeal held that PERB was wrong to find the District subjected Ramirez to disparate treatment and disproportionate punishment.  PERB had found disparate treatment because the District had never previously audited attendance reporting nor terminated an employee for misreporting attendance.  The court of appeal held this did not support a finding of disparate treatment because there was no evidence that another employee had ever misreported attendance.  PERB’s disproportionate punishment finding was also unreasonable.  Ramirez’s errors were serious so the District was not required to engage in progressive discipline.  Additionally, the District was allowed to use the parties’ prior settlement as evidence of a long history of misconduct and performance issues.

If an employer has antiunion motives, the employer will not be liable for violating the EERA if it can show it would have discharged the employee anyway for legitimate business reasons.  The court of appeal held the District successfully proved it would have terminated Ramirez regardless of any antiunion motives.

The court of appeal stated that the District would have uncovered Ramirez’s numerous errors, even if she had not engaged in union activity.  The investigation originated in a parent’s legitimate complaint. PERB and CSEA had argued that Ramirez should not have been terminated because her mistakes were minor, the District corrected them, and no harm occurred.  The court of appeal disagreed. It found the errors were serious, numerous, and occurred over several years. Ramirez’s mistakes could affect VCIS’s funding and student permanent records.  The District was legitimately concerned the state could shut down VCIS for misreporting attendance.  The District was not required to continue to employ a person who repeatedly committed serious errors and might continue to do so in the future.

The court of appeal overturned PERB’s order to reinstate Ramirez and ordered PERB to dismiss the complaint against the District.

Visalia Unified School Dist. v. Public Employment Relations Bd. (Jan. 9, 2024, No. F084032) ___Cal.App.5th___ [2024 Cal. App. LEXIS 13].

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